In June, Supreme Court Justice Sonia Sotomayor attracted attention for her dissent in Utah v. Strieff. In that case – which held that a court need not suppress the fruits of a suspicionless stop if the individual has a pre-existing warrant for their arrest – Sotomayor wrote that the Court’s opinion would encourage more baseless stops and thus “risk treating members of our communities as second-class citizens.” Setting aside legalese, Sotomayor cited the authors W.E.B. Du Bois, James Baldwin, and Ta-Nehisi Coates, and discussed the humiliation that people of color experience due to their disproportionate targeting by the criminal justice system. She ended her opinion with the following passage:
We must not pretend that the countless people who are routinely targeted by police are “isolated.” They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.
Regardless of one’s view of the particular legal question raised in Strieff, Sotomayor’s eloquence was praised by a variety of national publications as a stirring defense of liberty and freedom from arbitrary police stops that disproportionately target minorities. The Christian Science Monitor’s headline noted that Sotomayor’s dissent “nods to Black Lives Matter.”
The ACLU recently gave the same treatment to a decision of the Massachusetts Supreme Judicial Court – “State High Court Sends a Clear Message: Black Lives Do Matter.” That SJC opinion, issued on September 20, 2016 in a case called Commonwealth v. Warren, is an extraordinary statement on the disproportionate stops of minorities by police officers in Boston, and incorporates awareness of that disparate treatment into the SJC’s Fourth Amendment jurisprudence.
The case began with a breaking and entering in Roxbury. When the police responded to the call, the victims described seeing three black males jump from the window of their home – one wearing a red hoodie, one wearing a black hoodie, and the other wearing “dark clothing.” About thirty minutes later, and one mile away from the scene of the crime, the officer who had spoken to the victims saw the defendant (Warren) and his companion – both black males, both wearing dark clothing. On a hunch, the officer rolled down his window and yelled: “Hey guys, wait a minute.” The two men then made eye contact with the officer, turned around, and jogged down a path into a park. The officer then radioed for backup, and two other officers observed two males matching the description walking out of the park. When those officers tried to stop the men, Warren turned and ran back into the park while his companion stood still. The officers eventually caught up with Warren, and, after a brief struggle, arrested and searched him. After the officers recovered a firearm nearby, Warren was charged and convicted of unlawful possession of a firearm. He was never connected with the original breaking and entering.
On appeal, the SJC unanimously vacated Warren’s conviction. The case turned on the legality of the officer’s stop of Warren. In general, the police cannot seize anyone unless the officer has “reasonable suspicion” that the individual has committed a crime or was about to commit a crime. That suspicion must be “individualized” to the particular person stopped – a vague description of a criminal culprit does not give the police license to seize all individuals who fit the description anywhere on the streets of Boston.
The SJC held that Warren was “seized” when the second officer yelled the command to stop. At that moment, however, the police did not have sufficiently specific information to establish reasonable suspicion that Warren had any connection to the breaking and entering. The Court went through a number of factors. First, the Court noted the “very general description” of the perpetrators – black males in hoodies and dark clothing. With such a vague description, it was “simply not possible,” the Court said, to target Warren or any other black men wearing dark clothing as suspects in the crime. Second, the Court emphasized that Warren was stopped one mile from the crime scene about thirty minutes after the victims called the police. The distance travelled did not comport with the timing of the stop – the perpetrators were likely further away from the scene of the crime by that time – so neither timing nor location added much to the reasonable suspicion analysis. At this point, the Court had broken little doctrinal ground.
The Court’s opinion became noteworthy, however, in its discussion of Warren’s flight from the police. In general, we think of flight as an indication of what the law terms “consciousness of guilt.” As the Bible says: “The wicked flee when no man pursueth: but the righteous are bold as a lion.” Although that may be an appealing proposition, the SJC’s opinion struck a powerful blow at that intuition. The SJC noted the “irony” of considering flight as a factor in the reasonable suspicion analysis, since the law permits citizens not to speak to the police if officers do not have any reasonable suspicion to seize that person. A citizen has the right to completely ignore a police officer’s questions. In the absence of reasonable suspicion, a suspect is under no obligation to respond to a police inquiry, so the person’s decision to both ignore the officer and flee should add nothing to the reasonable suspicion analysis. To use evidence of flight to create reasonable suspicion would limit the right we all have to ignore baseless police questioning.
The SJC did not stop there. The Court also held that “where the suspect is a black male stopped by the police on the streets of Boston, the analysis of flight as a factor in the reasonable suspicion calculus cannot be divorced from the findings in a recent Boston Police Department report documenting a pattern of racial profiling of black males in the city of Boston.” In that report, the Boston Police Department was found to have stopped minorities at disproportionate rates. A follow-up summary of the report by the Massachusetts ACLU noted that 63% of Boston police-civilian encounters from 2007 to 2010 targeted African-Americans, even though they make up less than 25% of the Boston population. Given that racial bias, the SJC emphasized that there may be other reasons that an African-American male might flee the police:
Such an individual, when approached by the police, might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity. Given this reality for black males in the city of Boston, a judge should, in appropriate cases, consider the report’s findings in weighing flight as a factor in the reasonable suspicion calculus.
Because Warren’s flight added nothing to the “reasonable suspicion” analysis, “the investigation failed to transform the defendant from a random black male in dark clothing traveling the streets of Roxbury on a cold December night into a suspect in the crime of breaking and entering.”
One cannot overstate what the SJC has done in this case. For one, the Court did not need to go as far as it did. It would have been enough for the SJC to point out the many reasons why all individuals might flee the police other than consciousness of guilt – distrust of authority, dislike of police, bad past experiences with police, fear of harassment, and fear of unjust arrest. Those reasons would have allowed the Court to discount flight in all cases, regardless of the suspect’s race.
But the Court went much further. Citing evidence of systemic racial bias in the rate of police stops in Boston and recognizing the psychological impact that bias can have, the SJC dramatically changed the legal landscape on whether evidence of flight can contribute to reasonable suspicion. To put it plainly: The highest court in Massachusetts has unanimously said that black men in Boston have legitimate reasons to flee police encounters. Going forward, evidence of flight by black males will carry almost no weight in the “reasonable suspicion” analysis. And, even more broadly, the Court has recognized that proof of systemic racial discrimination must inform search-and-seizure jurisprudence, thus tying constitutional law to the lived reality of those who experience the criminal justice system.
The Warren opinion continues a trend of the Massachusetts SJC being on the cutting edge of such issues. In March 2015, SJC Chief Justice Ralph Gants gave a remarkable speech in which he discussed his opposition to mandatory minimum sentencing and emphasized the disparate impact that such laws have on racial and ethnic minorities. With the addition of three new Justices this term, one can only wonder whether the SJC’s outspokenness will continue.
In stark contrast, the United States Supreme Court has never gone nearly as far. In one case, that Court has even held that reasonable suspicion exists merely by virtue of the fact of an individual’s flight from police while present in a high-crime neighborhood. In this area of the law – as in many others – the SJC’s jurisprudence is far more protective of defendant’s rights than that of the U.S. Supreme Court.
The SJC opinion is also noteworthy because of its author. Justice Geraldine Hines grew up as an African-American in the Mississippi Delta and worked as a criminal defense and civil rights attorney. Like Justice Sotomayor, she no doubt has intimate familiarity with the subject of her judicial opinion. Drawing on their experiences, the Justices each recognized both the specific fact of disproportionate police stops and the general proposition that the law cannot develop in an a historical vacuum. In that way, the opinions are striking in their similarity. One can only wonder whether Sotomayor’s blistering dissent, and the considerable attention it attracted, inspired the Warren opinion’s defense of those same principles.